Arbitration Appeal No. 03 of 2011 · The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Arbitration Appeal No. 03 of 2011 M/s Sharda Construction a partnership firm having its office at New Area, Maharajganj Road, Aurangabad Bihar, through it’s the then Kaushal Kumar Singh son of Late Ambika Narayan Singh, resident of New Area, Maharajganj Road, P.O. Aurangabad, P.S. & District- Aurangabad (Bihar) … … Appellant Versus The State of Jharkhand through the Executive Engineer, National Highway Division, Gumla … Respondent … With Arbitration Appeal No. 10 of 2010 1.The State of Jharkhand through the Secretary, Department of Road Construction, Project Building, Dhurwa, P.O. and P.S. Dhurwa, District Ranchi 2. The Executive Engineer, National Highway Division, Gumla, P.O. … … Appellants and P.S. and District Gumla Versus M/s Sharda Construction, a partnership firm having its head office at Maharajganj Road, Aurangabad (Bihar) and Camp Office at 469/C, Shanti Sadan, Road No. 1, Mandir Marg, Ashok Nagar, Ranchi through its partner Shri Kaushal Kishore Singh son of Late Ambika Narain Singh, resident of Ashok Nagar, P.O. Ashok Nagar, P.S. Argora, District Ranchi Respondent … CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants For the Respondents --- --- : Mr. V.P. Singh, Senior Advocate : Mr. Sunil Kumar Mahto, Advocate : Ms. Bandana Kumari Sinha, Advocate (in Arb. Appeal No. 03 of 2011) : Mr. Ankit Kumar, A.C. to G.P. VI (In Arb. Appeal No. 10 of 2010) : Mr. Ankit Kumar, Advocate (In Arb. Appeal No. 03 of 2011) : Mr. V.P. Singh, Senior Advocate : Mr. Sunil Kumar Mahto, Advocate : Ms. Bandana Kumari Sinha, Advocate (In Arb. Appeal No. 10 of 2010) 18/31.03.2023 Heard Mr. V.P. Singh, learned senior counsel appearing on behalf of the appellant along with Mr. Sunil Kumar Mahto, Advocate and Ms. Bandana Kumari Sinha, Advocate in Arbitration Appeal No. 03 of 2011 and for the respondent in Arbitration Appeal No. 10 of 2010. 2 2. Heard Mr. Ankit Kumar, learned counsel appearing on behalf of the respondent-State in Arbitration Appeal No. 03 of 2011 and for the appellant in Arbitration Appeal No. 10 of 2010. 3. The foundational facts giving rise to the present cases are not in dispute. The parties entered into Agreement No. 12 F2 of 1998-99 for job No. 23/BR/1998-515 for construction, widening and strengthening of N.H. 23 in Km. 53 to 62 in Ranchi-Gumla Section along with supplementary agreement No. 49 F2 of 2000-01 for job No. 515; The parties also entered into another Agreement No. 13 F2 of 1998-99 for job No. 23/BR/1998-516 for Km. 67 to 75.435 Km of N.H. 23 along with supplementary agreement No. 50 F2 of 2000-01 for job No. 516. 4. A dispute arose between the parties and consequently the claimant-M/s Sharda Construction filed Arbitration Application No. 3 & 5 of 2004 before this Court for appointment of Arbitrator which was rejected by this Court and thereafter the order of rejection was
Legal Reasoning
challenged in the writ petition being W.P. (Civil) No. 4755 of 2004. The writ petition was allowed vide order dated 05.11.2004 and the learned arbitrator was appointed. The State went in appeal before the Hon’ble Supreme Court by filing S.L.P. (Civil) No. 8340 of 2005 which was dismissed on 26.02.2008. It is further not in dispute that the bone of contention between the parties at the time of appointment of Arbitrator was as to whether the arbitration clause No. 23 existed in the arbitration agreement inter-alia on account of certain notification dated 18.11.1992 by which clause-23 was struck off, but clause 23 was not struck off from the contract entered into between the parties. Admittedly, the contract involved in the present case was entered into after the Notification dated 18.11.1992. 5. It is further not in dispute that no petition in terms of Section 16 of The arbitration and conciliation Act, 1996 was filed by one or the other party before the learned Arbitrator questioning the jurisdiction of the learned Arbitrator or questioning the existence of arbitration clause in the agreement. 6. Admittedly, the parties participated in the arbitral proceedings and consequently the award was passed on 01.02.2009 (Annexure-3 to the arbitration appeal No. 3 of 2011). 3 7. Altogether seven claims were raised before the learned Arbitrator, out of which claim Nos. 1, 2, 6 and 7 were allowed; claim Nos. 4 and 5 were not allowed; claim No. 3 was partly allowed to the extent of Rs. 20 lacs out of claim of Rs. 80 lacs. The chart prepared by the learned arbitrator with regard to each claim is quoted as under:- AWARD Description of Claims 1. Claim amount with regards to Job No. 23/BR/1998-515 relating to agreement no. 12 F2 of 98-99 and supplementary agreement no. 49 F2 of 2000-01 Agreement 12 F2- 2,06,82,687.00 Supplementary Agreement 49F2- 62,00,684.00 Already paid amount- (-) 2,68,8371.00 Net payable amount 42,55,389.00 2. Claim amount with regard to Job relating 23/BR/1998-516 to No. agreement no. 13 F 2 of 98-99 and supplementary agreement no. 50 F2 of 2000-01 Agreement 13 F 2- 1,82,99,250.00 Supplementary Agreement 49F2- 56,89,856.00 Already paid amount (-) 1,89,91,065.00 Net payable amount 0,49,98,041.00 3. Claim with respect to the repairing work with W.B.M. as per the direction of the Executive Engineer the period of August 2002 to September 2002 Rs. 80 lacs. in between 4. Claim of damage with respect to the materials such as stone dust, bitumen, freight of Labours. The cost of machinery and the vehicle etc. due to the incidence of manhandling by the antisocial politicians Local elements. Rs. 2,00,00,000.00 and Awarded /Rejected 1. Awarded to the extent of the claim the claimant is entitled for payment of balance Amount Rs. 42,55,389.00 2. Awarded to the extent of the is claim. The Claimant for payment of entitled balance Rs. 49,98,041.00 only Amount 3. There is no any measurement taken either by the contractor or department. Applicant vide letter camp Ranchi dt. (Annexure-21) 01.11.2002 had claimed Rs. 20 Lakh for repairing work with W.B.M. but there is no any letter from then Ex. Eng. against this claim written to the applicant although the then Ex. Eng. has given the order to repair with WBM on direction of then C.E. N.H. Wing, Ranchi hence Award of Rs. 20 Lakh was granted against this claim. 4. Disallowed as there is no the provision in such agreement 5. Claim with respect to the mental agony 5. Disallowed there in no 4 harassment and expenses incurred on litigation right from civil Court up to the Hon’ble Supreme Court of India for a period of about seven Years Rs. 50,00,000.00 6. The Amount of security deposit as also the security deducted from the bills of the applicant with respect to all the four agreement (1209700) N.S.C. 12,09,700.00 10,79,000.00 Amount deducted From Running A/C. Bill 11,31,401.00 9,49,555.00 20,80,956.00 to 7. Claim with respect the Interest payable to the applicant on all the aforesaid claims of the applicant at the rate of 18% provision in the agreement 6. Allowed (A)Security in the form of N.S.C. Rs. 22,88,700/- (B) and Amount deducted from the bill As security for Rs. 20,80,956.00 7. Ordinary interest at the rate of 5% on item no. 1 & 2 & 6 (B) the date of submission of claim filed by the applicant till the actual date of payment. from All the above allowed awarded amount were to be paid within 2 months from the date of order/AWARD. 8. The respondent-STATE of Jharkhand filed application under Section 34 of The arbitration and Conciliation Act, 1996 for setting aside the award which was numbered as Arbitration Miscellaneous Case No. 02 of 2009. The grounds which have been raised by the State before the learned court below for setting aside the award is quoted as under:- (i) For that Clause 23 in the F 2 Agreement has been deleted by the Notification No. A2-Niyam-08/92.. 6113(S) dated 18.11.1992 of R.C.D. Govt. of Bihar and the same was left to be decided by the Arbitrator. But the Sole Arbitrator did not touch this aspect of the fact in the Award. (ii) For that to the Claim No. 1 for an Award of Rs. 42,55,389.00, it is submitted that out of the total agreement value i.e. Rs. 2,68,83,371.00 including supplementary agreement for Job No. 23/BR/1998-515, the work done amount is Rs. 2,26,27,980.00 as per 12th „On Account Bill‟ in Measurement Book dated 27.03.01. After that no remaining work under scope of contract has been executed by the contractor. The work done just in the month of March, 2001 started sign of failures/damages at many places just within two months which is evident from the inspection report as submitted dated 16.06.2001 of Department Flying Squad Team No. 2 vide Annexure-3. (iii) For that, to the Claim No. 2 for an Award of Rs. 49,98,041.00 it is stated that out of the total agreement value i.e. Rs. 2,39,89,106.00 including supplementary agreement for Job No. 23/BR/1998-516, the work 5 done amount is Rs. 1,78,17,576.00 as per measurement book dated 29.03.01 vide 11th On Account Bill. After that the total work done value Rs. 1,89,91,065.00 vide 13th „On Account Bill‟ as measured from April, 2002 to July, 2002. Thereafter, no remaining work under scope of contract has been executed by the opposite party (contractor). The fact reveals that the work done in the month of March, 2001 started sign of failures/damages at many places just within two months which is evident from the inspection report Annexure-3. (iv) For that to the Claim No. 3 for an Award allowing Rs. 20.00 lakhs for repairing works, it is stated that there is no provision or scope in the agreement for additional payment to be made on ground of repairing works for the acts of omission and commission during construction period. (v) For that to the Claim No. 6 for and Award allowing security in form of N.S.C. Rs. 22,88,700.00 and the amount deducted from the bills as security amounting to Rs. 20,80,956.00 it is stated that the agreement relating to Job No. 515 & 516 were rescinded vide letter No. 25 dated 14.01.2004 of the Executive Engineer, N.H. Division, Gumla, vide Annexure-4. Consequent there upon security deposit withheld. It is humbly submitted that under civil para 4.2.1 of the Annual report of 2005-06 the Accountant General, Jharkhand, Ranchi a sum of Rs. 84.18 lakhs, expenditure in connection to Job No. 515 & 516 has been considered, a loss to the Government exchequer due to Sub-standard work executed by the opposite party (contractor) vide Annexure-5. (vi) For that to the Claim No. 7 for an Award allowing ordinary interest at the rate of 5% per on Claim No. 1 and 2 and 6(B) it is stated that there is no outstanding dues payable to the opposite as per above statement for Job No. 515 & 516. Hence, payment of interest does not arise.” 9. The petition under Section 34 reflects that prayer for setting aside the Award was made by referring to Section 34(2)(a)(ii) (iv) and b(ii) of The Arbitration and Conciliation Act, 1996. 10. The learned court below decided the case vide impugned judgment dated 30.09.2010 and interfered only in connection with claim No. 3 and set aside the award given under claim No. 3 and the remaining portion of the award in connection with claim No. 1,2,6 and 7 were not interfered. Consequently, both the parties have filed their respective appeal. 11. The claimant has filed arbitration appeal No. 3 of 2011 on the ground that the learned court below has wrongly interfered with claim No. 3 and the State is aggrieved by non-interference by the learned court below in connection with claim No. 1, 2, 6 and 7. Argument of the State. 12. The learned counsel appearing on behalf of the State has submitted that the learned Arbitrator was under the legal obligation to 6 decide the point of existence and validity of the arbitration agreement in view of the directions issued by this Court in writ petition being W.P.(C) No. 4755 of 2004 pursuant to which the learned Arbitrator was appointed. He has referred to paragraph No. 21 of the said
Legal Reasoning
judgment annexed as Annexure-1. The learned counsel has submitted that in view of the specific direction issued by this Court, there was no further requirement for the State to raise specific plea in connection with the existence and validity of the arbitration agreement contained in the Contract. He submits that this aspect of the matter having not been touched upon by the learned Arbitrator, the award was fit to be set aside. He has submitted that in view of the Notification issued in the year 1992, the arbitration agreement did not exist. 13. So far as award in connection with claim No. 3 is concerned, the learned counsel has submitted that without prejudice to the aforesaid contention regarding non-existence of arbitration agreement between the parties in the agreement, the claim No. 3 has been rightly set aside by the learned court below, as the same was beyond the period of Contract. He has submitted that the learned Arbitrator has recorded a clear finding that the work was completed in the month of March-April, 2001 and at best the agreement remained valid till October, 2001 and the repair work was directed to be completed after October, 2001 and accordingly, the same did not fall within the agreement entered into between the parties. The learned counsel submits that the claim No. 3 was beyond the agreement between the parties and therefore the same has been rightly interfered with by the learned court below by passing a speaking order which does not call for any interference by this Court. 14. The learned counsel has further submitted that the claims which have been allowed by the learned Arbitrator, no reason has been assigned to award the claims and accordingly the learned Arbitrator has violated the provisions of Section 31(3) of The Arbitration and Conciliation Act, 1996. He submits that in the present case, the exceptions which have been mentioned in Section 31(3) at sub clause (a) and (b) do not exist. 15. The learned counsel for the State submits that though no specific plea in connection with the Award being non-speaking has 7 been raised on the ground under Section 34 of the Act, but on the face of the Award, the same is non-speaking and therefore it was required to be set-aside by the learned court below. He has also submitted that the learned court below has erred in relying upon a judgment passed by the Hon’ble Supreme Court reported in AIR 1967 SC 378 to say that the award cannot be set-aside on account of being non-speaking. He submits that the law in connection with the requirement of giving reasons has changed. He submits that under the Arbitration Act, 1940, there was no legal obligation to give a speaking award but under the Act of 1996, there is a mandate to pass a speaking award. The learned counsel submits that reliance on a judgment passed in the year 1967 is totally misplaced in view of the fact that admittedly the present proceedings are governed by The Arbitration and Conciliation Act, 1996. Arguments of the claimant. 16. Learned counsel appearing on behalf of the claimant, on the other hand, has opposed the prayer of the learned counsel for the State and has submitted that the Award is a well-reasoned Award based on appreciation of materials which were produced before the learned Arbitrator. He has submitted that it has been clearly recorded in the Award that the final bill, which was prepared on 25.06.2003 i.e. after a lapse of more than two years of completion of work, was absolutely against clause 8 which violated the agreement clauses, so the amount of final bill could not be accepted. The learned counsel has also submitted that the learned Arbitrator has also taken into consideration the report of the Executive Engineer of National Highway Division, Gumla pointing out the deficiency in connection with the work and after considering the materials on record, the learned Arbitrator has held that it meant that there was no fault on the part of the applicant. The learned counsel has further submitted that since the final bill which was prepared by the Department was rejected and it was not in dispute that the work was ultimately completed, therefore the award with regard to claim No. 1 and 2 was based on the estimated value of work. In such circumstances and considering the finding of the learned Arbitrator the award cannot be said to be non-speaking. This is without prejudice to the objection that no such ground was ever raised 8 by the State before the learned court below under Section 34 of the Act of 1996 alleging that the Award was non-speaking. 17. The learned counsel has also submitted that so far as claim No. 3 is concerned, the same was partly allowed and there was no scope for the learned court below to interfere with the award of claim No. 3 in view of the fact that the learned Arbitrator has considered the materials on record and passed the Award and the award with regard to claim No. 3 cannot be said to be beyond the agreement. 18. With regard to the point raised by the State on the jurisdiction of the Arbitrator and the existence of arbitration clause, the learned counsel submits that the existence of arbitration clause in the agreement was essentially a question of fact and law which was to be considered by the learned Arbitrator only upon an application which could be filed by the concerned party bringing on record the relevant facts and circumstances and the materials for consideration. The learned counsel submits that in view of the fact that as per the order passed by the writ Court that the validity and existence of the arbitration clause was to be examined by the learned Arbitrator, the same does not amount to any escape for the State to file appropriate application in terms of Section 16 of The Arbitration and Conciliation, Act, 1996. 19. The learned counsel has also submitted that the State entered into arbitral proceedings and fully contested the case on merits without raising any objection before the learned Arbitrator on the point of jurisdiction/existence and validity of the arbitration clause 23, it was not open to them to raise such a dispute for the first time before the learned court below in the petition under Section 34 of The Arbitration and Conciliation Act, 1996. The learned counsel submits that the existence and validity of the arbitration clause was itself a mix question of fact and law that could be gone into by the learned Arbitrator only if such a dispute was raised before the learned Arbitrator. 20. He has also submitted that the scope of interference under Section 34 of The Arbitration and Conciliation Act, 1996 is very limited. The learned court below has rightly exercised jurisdiction so far as claim No. 1, 2, 6 and 7 are concerned and has wrongly exercised 9 its jurisdiction so far as claim No. 3 is concerned. The learned counsel, while referring to the claim Nos. 6 and 7, has submitted that since the work was already completed, the refund of security deposit and the amount deducted from the bill as security has been rightly allowed and interest has also been rightly allowed by the learned Arbitrator which do not call for any interference. The learned counsel submits that it was within the jurisdiction of the learned Arbitrator to award interest for the pre-reference, pendentelite and also post award although the learned Arbitrator has allowed interest @ 5% on item Nos. 1, 2 and 6 (b) from the date of submission of claim filed by the applicant till the date of actual payment. Findings of this Court. Arguments with regard to non-existence of the Arbitration Clause in the Contract i.e clause No. 23. 21. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that it is not in dispute that initially a petition under Section 11(6) for appointment of Arbitrator was rejected which was subject matter of consideration in the writ jurisdiction and the Hon’ble writ Court has clearly observed that the existence and validity of the Arbitration clause-23 was required to be examined by the learned Arbitrator. However, the fact remains that before the learned arbitrator, neither any petition under Section 16 of The Arbitration and Conciliation Act, 1996 was filed, nor any of the parties raised any objection with regard to the existence and validity of the arbitration clause and therefore the learned Arbitrator did not enter into such dispute. There is no finding of the learned Arbitrator regarding the existence and validity of the Arbitration clause-23. 22. It is further not in dispute that the Notification for deleting of clause 23 in the Standard Arbitration Agreement was issued as back as in the year 1992 and the arbitration agreement in the present case was entered into in the year 1998-99 in which clause 23 of the agreement was still present. This Court is of the considered view that merely because the learned writ Court had observed that the existence and validity of the arbitration clause was to be considered by the learned Arbitrator, the same does not mean that the learned Arbitrator would 10 have entered into such dispute suo-motu without any plea in this regard being raised by either party. Essentially, the existence and validity of the arbitration clause is mixed question of fact and law which was required to be raised by the parties and only on the materials which were to be placed before the learned Arbitrator such a decision could have been taken by the learned Arbitrator. In such circumstances, this Court finds that the learned court below has rightly referred to Section 16 of The Arbitration and Conciliation Act, 1996 and has rightly held that the State having not raised any point on the existence and validity of the arbitration agreement was not permitted to raise such a dispute for the first time in a petition filed under Section 34 of The Arbitration and Conciliation, Act, 1996. 2. In view of the aforesaid findings, this Court is of the considered view that the impugned order, refusing to interfere on the point of alleged non-existence of Arbitration Clause i.e clause- 23 in the agreement, does not call for any interference by this Court. Claim No. 3 of the Award. 3. So far as claim No. 3 is concerned, it was relating to repairing work under the directions of Executive Engineer during the period between August, 2002 and September, 2002 to the extent of Rs. 80 lakhs. Against this claim, the learned Arbitrator has recorded that there was no measurement taken either by the contractor or the department and the applicant, vide his letter dated 02.11.2002 had claimed Rs. 20 lakhs for repair work and ultimately awarded an amount of Rs. 20 lakhs against this claim. 4. From the perusal of the Award, finding has been recorded on the basis of materials including the inspection report dated 16.06.2001 that the work was completed in March, 2001/April 2001. 5. It has also been recorded that as per the agreement clause, the responsibility of the contractor to rectify the work was only upto six months after completion of the work i.e. upto October, 2001. The learned Arbitrator recorded that the Executive Engineer, vide his letter dated 06.08.2002 had written for repair of work after expiry of the defect liability period in October, 2001, the Executive Engineer had not submitted any document regarding extension of agreement till that 11 date to show that it was covered by the defect liability clause. The learned Arbitrator on the one hand, recorded that the responsibility of the contractor to rectify the work was only upto six months after completion of the work upto October, 2001 and the defect liability period expired in the month of October, 2001, still awarded Rs. 20 Lakhs against claim for the repair work which was beyond October, 2001 and as per the case of the claimant himself, the work was executed during the period August, 2002 to September, 2002. 6. The State while challenging the award against claim no. 3 took a plea that there was no provision or scope in the agreement for additional payment to be made on the ground of repair work. The learned court below recorded that there was no provision or scope in the agreement for additional payment to be made on the ground of repairing work during the construction period and specifically recorded its finding with regard to claim no. 3 at paragraph 9. The learned court below discussed claim no. 3 and took note of the fact that the period of repair work was undertaken during the period from August, 2002 and September, 2002 and was of the view that certainly this claim was not within the scope of the agreement. The learned court below took into consideration that as per the award, work was completed in the month of March, 2001/April, 2001 and the learned Arbitrator had also mentioned that after completion of work, upto six months if any damage was to be caused, the contractor had to repair the same on his own cost. This has been mentioned in clause 16 of the agreement. Thus, the warranty period was for a period of six months. The learned court below recorded that the claim no. 3 was not with respect to any repair work during the warranty period and also recorded that if the repair work would have been done during the warranty period, no claim on that account could have been granted in view of Clause 16 of the agreement. The learned court below recorded that the learned Arbitrator had awarded claim no. 3 for repairing work from August, 2002 to September, 2002 which was not the subject matter of dispute under the agreement. 7. The learned court below, after detailed discussion, recorded that the learned Arbitrator had travelled beyond the scope of arbitration while awarding claim no. 3. However, the learned court below 12 recorded that other claims which were allowed by the learned Arbitrator were made in consonance with the arbitration proceedings and were well within the scope of submission of the Arbitration, hence they could not be set-aside. The Award in regard to claim no. 3 was clearly segregable and therefore, the Award in connection with claim no. 3 was set-aside holding it to be without jurisdiction. This court finds that the learned court below has interfered with regard to claim no.3 by citing sound reasons within the permissible scope of interference under section 34 of The Arbitration and Conciliation Act, 1996. 8. In view of the aforesaid findings, this court is of the considered view that the impugned order, interfering with and setting aside the award in relation to claim no.3, does not call for any interference by this court. Claim Nos. 1 , 2, 6 and 7 of the Award 9. The learned Arbitrator recorded that as per Clause -7, the monthly bill was to be submitted as per the work done by the contractor otherwise the engineer-in-charge or his subordinate was to prepare the bill which would be binding on the contractor. The learned Arbitrator thereafter considered clause 8 of the agreement and recorded that as per Clause 8, the final bill was to be prepared by the officer of the Public Works Department in accordance with the rules of the department in the presence of the contractor within a period of one month of the date fixed for completion of work. The learned Arbitrator recorded that both the clauses i.e. Clause 7 and 8 were not followed by the State. 10. The learned Arbitrator also recorded that final bills were prepared on 25.06.2003 i.e. after lapse of two years from the completion of work which was totally against clause 8, so the amount of final bill was also not acceptable. The learned Arbitrator further recorded that the reports stated that the work done were as per specification. The learned Arbitrator also recorded that as per the clause of the agreement, it was stipulated that the contractor was bound to rectify the work within six months’ after completion of the work and recorded that there was no fault reported on the part of the 13 claimant. As per arbitral award work was completed in the month of March/April 2001. 11. The learned Arbitrator, after considering the facts, recorded that the action of the executive engineer in rescinding the work vide letter dated 14.01.2004 was illegal and therefore, it was set-aside and quashed. 12. The learned Arbitrator, after having set-aside the order rescinding the contract dated 14.01.2004 and holding that the work was already completed, ultimately allowed the remaining amount of the agreement/supplementary agreement value against claim nos. 1 and 2. 13. This court finds that the learned Arbitrator has given sound reasons based on materials on record while relying upon the estimated cost of work while awarding the claim No. 1 and 2. The award is intelligible, and the reasons are adequate and proper. From the perusal of the grounds raised in the petition filed under Section 34 of The arbitration and conciliation, Act, 1996, it is apparent that the State basically sought reappreciation of materials/evidences. 14. The claim No. 6 is with regard to refund of security in the form of NSC and the amount deducted from the running bill as security. Such deductions are not in dispute. It is further not in dispute that the claimant had completed the required work therefore the award with regard to claim No. 6 has rightly not been interfered with by the learned court below. 15. So far as claim No. 7 is concerned, the award of interest was within the jurisdiction of the learned arbitrator and he has awarded only 5% interest on certain items from the date of submission of claim till the date of actual payment. The award of interest by the learned arbitrator has rightly not been interfered by the learned court below. 16. With regard to claim no. 1,2,6 and 7 the learned court below has recorded that the award with regard to these items were well within the submission submissions before the learned arbitrator and were related with the terms of the agreements. The learned court held that from the perusal of the award it appeared that learned arbitrator has discussed and appreciated all the documents and evidences adduced by the parties and has mentioned that as per report of Flying 14 squad Team, works of both the agreements, including supplementary agreement were completed by the claimant in the month of March 2001 to April 2001. The learned court below also found that it cannot be said that learned arbitrator has not appreciated the evidences adduce by the State. The learned court below took note of the legal position that the court could not appreciate or reappreciate any of the evidences adduced before the arbitrator and also cannot give its findings regarding correctness of the conclusion of the arbitrator because the court was not an appellate Court. The learned court below has recorded that the learned Arbitrator had the jurisdiction to award pre-reference, pendentilite and post award interest. 17. After having given the aforesaid findings, the learned court below also made reference to the judgement passed by the Hon’ble Supreme Court reported in AIR 1967 SC 378 that on the ground of non-speaking award no award can be set aside. This court finds that the reference to the aforesaid judgement was totally misplaced as the award is a speaking award. Therefore, reference to the said judgement has no bearing in the matter and that by itself cannot be a ground to interfere with the impugned order. 18. The learned court below by a detailed judgement concluded as follows: - “ 11. From perusal of the case record and after hearing arguments of both parties and on the basis of discussion made above, I find that there is no reason to set aside award dated 01-02-09 passed by sole arbitrator Sri C.P. Sinha, Superintending Engineer, Dhanbad except claim No. 3 because other claims which have been awarded by the arbitrator are well within his jurisdiction and as per the terms of the agreement in between the parties and well within the scope of this arbitration proceeding. So far as claim No. 3 is concerned, which is with respect to the repairing work done in the month of August 02 - September 02 it does not come under the scope of this arbitration proceeding because there was no such agreement and these repairing works have not been mentioned in the contract which has been referred to the arbitrator. If such work was done, the OP may take recourse for his repairing cost but it cannot be granted in this arbitration proceeding. Hence, only the elain No. 3 which has been awarded by the arbitrator in his award dated 01-02-09 is hereby set aside and this arbitration misc. case is allowed partly only with respect to claim No. 3 of the said award.” 19. This court finds that the learned court below has rightly refused to interfere with claim No. 1,2,6 and 7 and has rightly interfered with claim No. 3 by well speaking order and the same does not call for any interference. From the perusal of the award this court finds that the 15 award is a speaking award and the State rightly did not take any such ground under Section 34 of the Act before the learned court below alleging that the award was non-speaking. Since the award is a speaking award, the arguments of the learned counsel for the State with regard to non-speaking award is of no consequence hence rejected. 20. In view of the aforesaid findings, this court is of the considered view that the impugned order, refusing to interfere with the award in relation to claim no.1,2,6 and 7 , does not call for any interference by this court. 21. As a cumulative effect of the aforesaid findings, the impugned order does not call for any interference by this court. The appeal of the claimant i.e. Appeal No. 3 of 2011 is dismissed and the Appeal of the State being Appeal No. 10 of 2010 is also dismissed. 22. 23. Interim order, if any, stands vacated. Pending I.A., if any, is closed. Binit (Anubha Rawat Choudhary, J.)